Ceridwen Koski

Ogletree Deakins

Quick Key Points

• Now that Joe Biden is U.S. President Elect, we anticipate that some of the existing business-immigration roadblocks may dissolve.
• Implementation of more favorable rules will take time.
• Two of the most popular work visas, H-1B’s and L-1’s have been banned through an Executive Order, which is set to expire at the end of this year. This ban will probably not be renewed.
• The American Immigration Lawyers Association has proposed a number of recommendations to facilitate more robust visa services.
• One of the most impactful immigration developments by DOL is a rule that went into effect on October 8, 2020, changing the way prevailing wages are calculated.
• Employers are assessing their usage of the H-1B category which has been in the crosshairs of the current administration, but they’re also taking a wait and see approach as these proposed rules may become irrelevant under the Biden administration.

Now that Joe Biden is U.S. President-elect, we anticipate that some of the existing business-immigration roadblocks may dissolve.  Practically speaking, however, implementation of more favorable rules will take time.   In addition, lockdowns and limited resources due to a new wave of Covid-19 will continue to cause immigration delays, at least for the time being.

We know that Joe Biden is working on new Executive Orders to supersede extremely restrictive immigration policies including the “Buy American Hire American” Executive Order from 2017. The three U.S. agencies that would implement new Executive Orders, the Department of Labor, The Department of Homeland Security, and Department of State will need time to “steer the ship” under Biden’s direction.

Department of State (DOS)

Consulates throughout the world issue visas on behalf of the DOS.   Two of the most popular work visas, H-1B’s and L-1’s have been banned through an Executive Order, which is set to expire at the end of this year.  This ban will probably not be renewed.  That said, a second wave of Covid-19 has tempered the expectation of the resumption of routine visa processing of work visas.  While we saw increased engagement from Consulates in late August and September, Consulates are again cancelling appointments and rescheduling them after the New Year.  In addition, there has been a recent reduction of available emergency appointments at which permission to travel as an exception to the Schengen area U.S. travel ban may have been sought.  Although treaty visas like E-1 and E-2 have not been targeted by the current administration, those work visas have been impacted by travel restrictions and the limited resources allocated to the Department of State.

The American Immigration Lawyers Association has proposed a number of recommendations to facilitate more robust visa services including, elevating the “Deputy Assistant Secretary (DAS) for Consular Affairs to be co-equal with the other DAS positions in the State Department and provide the necessary resources, including a significant increase in funding, to operate effectively and without undue political influence.”  Another recommendation is to broaden visa interview waivers for low risk individuals.  Finally, the new administration will likely seek to fill vacant positions at the Department of State, which experienced significant attrition over the past three plus years.  In summary, Consulates are expected to resume routine visa processing, although challenged by Covid-19 physical proximity measures, and to facilitate an increase in business immigration to the U.S. by the lapse of existing Executive Orders and the introduction of new immigration-friendly policies.

The Department of Labor (DOL)

One of the most impactful immigration developments by DOL is a rule that went into effect on October 8, 2020, changing the way prevailing wages are calculated.  Employers are now required to use higher DOL prevailing wages in H-1B and PERM Labor Certification applications.  The new rule does not change an employer’s ability to use an alternate wage survey when available, which may mitigate impact for some employers.  The rule, although in effect, is being litigated in court and the immigration bar and business community expects a court decision that will enjoin DOL from continuing to use the new wages.  If litigation continues to pend when President Elect Biden takes office, the new administration will probably not defend the rule in court.

Department of Homeland Security (DHS)

With some exceptions, DHS, through Customs and Border Protection (CBP), has clamped down on the entry of business travelers.  Still, routine visa petition processing within the sub-agency, USCIS, has been ongoing with a few hiccups.  However, visa categories, like the H-1B, are more heavily scrutinized and in October 2020, the agency announced a new rule to go into effect on December 7^th to limit the definition of H-1B occupations. Litigation has commenced and like the DOL rule, this rule is expected to be enjoined and not defended by the new administration.  There is also litigation challenging a proposed rule that would change the way the H-1B cap lottery would be implemented.  As such, employers are assessing their usage of the H-1B category which has been in the crosshairs of the current administration but taking a “wait and see” approach as these proposed rules may become irrelevant under the Biden administration.

In summary, while we eventually expect to see increased international business engagement through more immigration-friendly policies, it will take time and Covid-19 will not quicken the transition.

Email or call Mike Klyszeiko, Director of Launchpad USA, for more info about transatlantic business, U.S. market entry, and how you can get involved in our community.